Abstract

Contemporary research studies conducted on the victimisation of children in South Africa show that South African children in particular endure and witness exceptionally high levels of crime. As a result, children with increasing frequency, have to appear in court as victim or witnesses that have to testify about these crimes. This not a simple process for children as, they are by their very nature ill-equipped to deal with the confrontational and adversarial court setting. In an attempt to shield these children from the trauma, stress and suffering when having to testifying in the presence of an accused, the function/persona of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. Section 170A(1) of the Act provides that whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testifies at such proceeding, the court may appoint an intermediary in order to enable such witness to give his or her evidence through that intermediary.

Before an intermediary will be appointed a court has to decide whether a child will be exposed to "undue mental stress and suffering." The aforementioned phrase is however not defined in the Act nor has any guidelines been laid down. The absence of a clear definition is problematic as it may lead to inconsistent application and consequential injustices. It is hence the focus of this article to assess and to provide guidelines as to what is meant by the words "undue mental stress or suffering" in accordance with the provisions of the Act. Possible guidelines to assist the courts in determining the meaning as well as the position in foreign systems are also considered.